DOCSLIB.ORG

Civil Recourse and Social Equality

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Civil Recourse and Social Equality Florida State University Law Review Volume 39 Issue 1 Article 12 2011 Civil Recourse and Social Equality Jason M. Solomon [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Jason M. Solomon, Civil Recourse and Social Equality, 39 Fla. St. U. L. Rev. (2011) . https://ir.law.fsu.edu/lr/vol39/iss1/12 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW CIVIL RECOURSE AND SOCIAL EQUALITY James M. Solomon VOLUME 39 FALL 2011 NUMBER 1 Recommended citation: James M. Solomon, Civil Recourse and Social Equality, 39 FLA. ST. U. L. REV. 243 (2011). CIVIL RECOURSE AS SOCIAL EQUALITY JASON M. SOLOMON I. INTRODUCTION ................................................................................................ 243 II. RECOURSE AS PART OF DISTRIBUTIVE JUSTICE ............................................... 246 A. Recourse for What? ................................................................................... 247 B. A Just Distribution of the Right to Recourse ............................................ 250 C. How is the Right Distributed? By What Principles? ................................ 251 III. RECOURSE AS PART OF SOCIAL EQUALITY ....................................................... 252 A. Equality of Status ..................................................................................... 257 B. Equality in the Empowering .................................................................... 258 C. Equality in the “Doing” ............................................................................ 259 IV. THE DISTINCTIVENESS OF CIVIL RECOURSE .................................................... 264 A. Criminal Law ........................................................................................... 265 B. No-Fault Systems ..................................................................................... 265 C. Apologies as a Remedy ............................................................................. 266 V. OBJECTIONS..................................................................................................... 267 A. Plausible Justification for Tort Law?....................................................... 268 B. Is This the System We Would Really Have If Concerned about Distributive Justice and Social Equality? ................................................. 269 VI. CONCLUSION:THE STATE OF NATURE ............................................................. 271 I. INTRODUCTION In the past decade, civil recourse theory has emerged as an im- portant new way of thinking about tort law as individual justice. Like corrective justice, civil recourse sees tort law as about deontological concepts such as right and wrong, in contrast to utilitarian accounts that focus on maximizing social welfare. This Symposium is a testa- ment to the centrality of civil recourse to contemporary debates in tort theory, and private-law theory more broadly. Like any new theory, civil recourse theory has drawn its critics. The primary architects of civil recourse theory, Ben Zipursky and John Goldberg, have pitched the theory as an interpretive one and have focused much of their work thus far on the descriptive or ex- planatory part of the enterprise.1 But some critics have criticized civil recourse theory as failing to describe key aspects of tort law or as being too indeterminate to explain doctrinal choices or case outcomes. Oth- er critics, like some at this Symposium, characterize civil recourse Associate Professor, William and Mary School of Law. Thanks to Angela Banks, Stephen Darwall, Andrew Gold, Michael Steven Green, and Trotter Hardy for thoughtful comments on a previous draft, to the attendees at the 2011 Blackstone Lecture at William and Mary, where I talked about some of these ideas, to all the participants in the Symposi- um on Civil Recourse Theory, and particularly to Curtis Bridgeman and the Florida State University Law Review staff for organizing the Symposium. Thanks to Jordan Bowman for valuable research assistance and Ben Keele for expert library support. 1. I have also contributed to this. See Jason M. Solomon, Judging Plaintiffs, 60 VAND.L.REV. 1749 (2007); John C.P. Goldberg, Wrongs Without Recourse: A Comment on Jason Solomon’s Judging Plaintiffs, 61 VAND.L.REV.EN BANC 1 (2008). 244 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol 39:243 not as a competitor to corrective justice theory at all, but rather a variant on or component of it. Still other critics have focused on the lack of adequate normative foundations, or political theory, undergirding a right to civil re- course.2 Such a right needs further justification, this argument goes, particularly because on its face, the right appears to be one of retalia- tion or vengeance, and it seems unlikely that this is either norma- tively attractive or an appropriate part of a modern liberal state.3 As one who is sympathetic to civil recourse theory, I am focused on re- sponding to these critiques. In prior work, I tried to develop the conceptual foundation for a normative defense of the right to civil recourse. Specifically, I argued that the right to recourse could be supported through essentially three related steps: (1) the person harmed was entitled to resent the wrongdoer, in light of the nature of the wrong; (2) the victim calling to account the wrongdoer was a normatively attractive response; and (3) the state can help affirm the political ideal of a community of equals by providing a forum for equal or mutual accountability where individuals can make demands of those who have wronged them.4 Zipursky’s contribution to this Symposium continues to develop the normative foundations of the right to recourse, building in part on this work.5 Although my focus in this Article is on political theory, the dis- cussion will bear on the normative foundation (as a matter of legal theory) as well. In the prior article, I focused on equal accountability as an attractive moral norm and conceptual foundation for the right to recourse, drawing in large part on Stephen Darwall’s work in mor- al philosophy on the “second-person standpoint.”6 But I also suggest- 2. Concerning the need for a political theory of recourse, see Jules Coleman & Gabe Mendlow, The Normative Structure of Tort Law 25 n.16 (2009) (unpublished manuscript), available at http://www.law.upenn.edu/academics/institutes/ilp/2009papers/ ColemanPennWorkshopDraft.pdf, stating “it is hard to assess the recourse view absent a good deal more work being done on the side of the relevant political philosophy.” 3. See, e.g., John Finnis, Natural Law: The Classical Tradition, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 1, 56 (Jules Coleman & Scott Shapiro eds., 2002). 4. See Jason M. Solomon, Equal Accountability Through Tort Law, 103 NW.U.L. REV. 1765 (2009). In a related piece, Nathan Oman considers three similar questions in justifying civil recourse: (1) When is acting against a wrongdoer justified? (2) Under what circumstances should the state be involved in providing a mechanism for such action? (3) Are certain kinds of civil wrongs more appropriate for such a response than others? See Nathan B. Oman, The Honor of Private Law, 80 FORDHAM L. REV. 32 (2011). 5. See Benjamin C. Zipursky, Substantive Standing, Civil Recourse, and Corrective Justice, 39 FLA.ST.U.L.REV. 299 (2011). 6. See generally STEPHEN DARWALL,THE SECOND-PERSON STANDPOINT:MORALITY, RESPECT, AND ACCOUNTABILITY (2006). 2011] CIVIL RECOURSE AS SOCIAL EQUALITY 245 ed that some broader notion of equality might help underwrite the state’s involvement in an institution like tort law.7 This Article further explores whether a conception of “equality” might support having the right to recourse as a matter of political theory. To preview the argument, justifying the right to recourse might draw on two distinct, but related, notions of equality—a dis- tributive one and a relational, or social, one.8 These two conceptions relate in the following way: the right to hold accountable those who have wronged you is a good subject to principles of distributive justice. And this good is something that the state provides to help constitute a community that aspires to social equality—where individuals relate to one another as equals. Explain- ing more what I mean by this is the task of the rest of this Article.9 Before beginning this task, let me pause on method and scope. The approach is to look at our society and set of social and political institutions and try to abstract from that a set of principles that might help explain and justify our existing arrangements.10 But this is not a full-blown political theory of civil recourse. It is a tentative sketch, building on prior work of my own and others, including those in this Symposium.11 I am not claiming that the distributive justice or social equality principles I discuss explain the content of tort law.12 The claim is that they might help justify the institution of tort law, or civil justice,13 as a matter of legal theory or help us to understand the role of the civil justice system in our structure of government as a matter of political theory. To be sure, if the distributive justice and social equality prin- 7. See Solomon, supra note 4, at 1805-11. 8. The particular relationship
Load more

Recommended publications
  • On the Conceptual Confusions of Jurisprudence Aaron J
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Jurisprudence Review Volume 7 | Issue 1 2014 On the Conceptual Confusions of Jurisprudence Aaron J. Rappaport Follow this and additional works at: https://openscholarship.wustl.edu/law_jurisprudence Part of the Courts Commons, History of Philosophy Commons, Judges Commons, Jurisprudence Commons, Legal History Commons, Legal Theory Commons, and the Rule of Law Commons Recommended Citation Aaron J. Rappaport, On the Conceptual Confusions of Jurisprudence, 7 Wash. U. Jur. Rev. 77 (2014). Available at: https://openscholarship.wustl.edu/law_jurisprudence/vol7/iss1/7 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Jurisprudence Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ON THE CONCEPTUAL CONFUSIONS OF JURISPRUDENCE AARON J. RAPPAPORT INTRODUCTION For more than half a century, legal theory has focused on a particular objective—to understand and describe the “concept” of law.1 In that pursuit, theorists have employed a methodology aptly called “conceptual analysis.”2 The result has been a series of striking claims about law's nature—that law has a fixed essence, that it is fundamentally normative, that it is based on the “marriage” of primary and secondary
    [Show full text]
  • Method and Principle in Legal Theory
    Book Review Method and Principle in Legal Theory Stephen R. Perryt The Practice of Principle: In Defence of a PragmatistApproach to Legal Theory. By Jules L. Coleman.* Oxford. Oxford University Press, 2001. Pp. 226. $39.95. Jules Coleman is an exceptionally distinguished legal theorist who has made significant contributions to many different fields in legal and political philosophy, but he is particularly well known for his work in tort theory and in jurisprudence. In tort theory, he has offered a powerful and sustained defense of the view that tort law is best understood by reference to the principle of corrective justice.' In jurisprudence, he is one of the two most prominent contemporary legal positivists-the other is Joseph Raz-and also the leading proponent of the view that has come to be known as inclusive legal positivism.2 That view holds that while a particular legal system's criteria of legality-the criteria that determine which norms are to count in the system as legal norms-must be grounded in a social convention of a certain kind, the criteria themselves need not refer exclusively to social sources; contrary to what Raz has argued, the sources of law can also be moral in character. t John J. O'Brien Professor of Law and Professor of Philosophy, University of Pennsylvania Law School. I would like to thank the participants in a workshop at Duke Law School for their helpful comments on an earlier draft of this Review. * Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy, Yale University. 1. See, e.g., JULES L.
    [Show full text]
  • Scanned by Camscanner
    Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner Scanned by CamScanner IRONING OUT THE CREASES: RE-EXAMINING THE CONTOURS OF INVOKING ARTICLE 142(1) OF THE CONSTITUTION Rajat Pradhan* ABSTRACT In the light of the extraordinary and rather frequent invocation of Article 142(1) of the Constitution of India, this note expounds a constructive theory of perusing Article 142(1) by the Supreme Court. The central inquiry seeks to answer the contemporaneous question of whether Article 142 can be invoked to make an order or pass a decree which is inconsistent or in express conflict with the substantive provisions of a statute. To aid this inquiry, cases where the apex court has granted a decree of divorce by mutual consent in exercise of Article 142(1) have been examined extensively. Thus the note also examines the efficacy and indispensible nature of this power in nebulous cases where the provisions of a statute are insufficient for solving contemporary problems or doing complete justice. INTRODUCTION An exemplary provision, Article 142(1) of the Constitution of India envisages that the Supreme Court in the exercise of its jurisdiction may pass such enforceable decree or order as is necessary for doing ‘complete justice’ in any cause or matter pending before it. While the jurisprudence surrounding other provisions of the Constitution has developed manifold, rendering them more concrete and stable interpretations, Article 142(1) is far from tracing this trend. The nature and scope of power contemplated in Article 142(1) has continued to be mooted imaginatively.
    [Show full text]
  • Positivism and the Inseparability of Law and Morals
    \\server05\productn\N\NYU\83-4\NYU403.txt unknown Seq: 1 25-SEP-08 12:20 POSITIVISM AND THE INSEPARABILITY OF LAW AND MORALS LESLIE GREEN* H.L.A. Hart made a famous claim that legal positivism somehow involves a “sepa- ration of law and morals.” This Article seeks to clarify and assess this claim, con- tending that Hart’s separability thesis should not be confused with the social thesis, the sources thesis, or a methodological thesis about jurisprudence. In contrast, Hart’s separability thesis denies the existence of any necessary conceptual connec- tions between law and morality. That thesis, however, is false: There are many necessary connections between law and morality, some of them conceptually signif- icant. Among them is an important negative connection: Law is, of its nature, morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible.” This Article argues that Hart’s most important message is that there is also an immorality that law makes possible. Law’s nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. INTRODUCTION H.L.A. Hart’s Holmes Lecture gave new expression to the old idea that legal systems comprise positive law only, a thesis usually labeled “legal positivism.” Hart did this in two ways. First, he disen- tangled the idea from the independent and distracting projects of the imperative theory of law, the analytic study of legal language, and non-cognitivist moral philosophies. Hart’s second move was to offer a fresh characterization of the thesis.
    [Show full text]
  • Ebook Download Fundamental Legal Conceptions As Applied in Judicial
    FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING BY WESLEY NEWCOMB HOHFELD 1ST EDITION PDF, EPUB, EBOOK David Campbell | 9781351935210 | | | | | Fundamental Legal Conceptions As Applied in Judicial Reasoning by Wesley Newcomb Hohfeld 1st edition PDF Book A few examples may serve to make this clear. Sc , "Domicile, therefore, is an idea of the law. A new nomenclature was accordingly invented by Bentham, which is convenient for scientific use, although it has not found its way into ordi- nary language. Bees Printwg Co. The same observations apply, mutatis mutandis, to the term "liberty. In view of the considerations thus far emphasized, the importance of keeping the conception of a right or claim and the conception of a privilege quite distinct from each other seems evident ; and, more than that, it is equally clear that there should be a separate term to represent the latter relation. People C, passim ; JUen v. Once the "escrow" is formed, the grantor still has the legal title : but the grantee has an irrevocable power to divest that title by performance of certain conditions i. Search icon An illustration of a magnifying glass. Sudclen [ISOfi] 1 Q. Take the case of a trust. People , 13 N. Right in the narrow sense — as the correlative of duty — is too well la Terry, Leading Principles of Anglo-American Law, eh. The term "license," sometimes used as if it wtn-. August 5, Bates 1S65 , 34 L. Woync Co. Brtsc Co. In view of what has already been said, very little may suffice con- cerning a liahility as such. It may here be noted that it has happened over and over again that given legal relations were at first "exclusive"' but that after a time, because of changes in the common law, they became "concurrent.
    [Show full text]
  • Paternalism, Unconscionability Doctrine, and Accommodation Author(S): Seana Valentine Shiffrin Source: Philosophy & Public Affairs, Vol
    Paternalism, Unconscionability Doctrine, and Accommodation Author(s): Seana Valentine Shiffrin Source: Philosophy & Public Affairs, Vol. 29, No. 3 (Summer, 2000), pp. 205-250 Published by: Wiley Stable URL: http://www.jstor.org/stable/2672846 . Accessed: 18/04/2013 10:30 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Princeton University Press and Wiley are collaborating with JSTOR to digitize, preserve and extend access to Philosophy &Public Affairs. http://www.jstor.org This content downloaded from 137.148.11.31 on Thu, 18 Apr 2013 10:30:47 AM All use subject to JSTOR Terms and Conditions SEANAVALENTINE SHIFFRIN Paternalism, UnconscionabilityDoctrine, and Accommodation INTRODUCTION The unconscionability doctrine in contract law enables a court to decline to enforce a contract whose terms are seriously one-sided, overreaching, exploitative, or otherwise manifestly unfair.' Some examples of its de- ployment include the refusal to enforce: contracts that charge usurious loan rates,2a contract paying a grossly inadequate sum for an annuity,3a one-sided, mandatory employment arbitration agreement
    [Show full text]
  • Law and Obligations
    Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2002 Law and Obligations Leslie Green Osgoode Hall Law School of York University Source Publication: The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford, UK: Oxford University Press, 2002. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Repository Citation Green, Leslie, "Law and Obligations" (2002). Articles & Book Chapters. 119. https://digitalcommons.osgoode.yorku.ca/scholarly_works/119 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2002 Law and Obligations Leslie Green Osgoode Hall Law School of York University Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/scholarly_works Repository Citation Green, Leslie, "Law and Obligations" (2002). Articles & Book Chapters. Paper 119. http://digitalcommons.osgoode.yorku.ca/scholarly_works/119 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Law and Obligations Oxford Handbooks Online Law and Obligations Leslie Green The Oxford Handbook of Jurisprudence and Philosophy of Law Edited by Jules L. Coleman, Kenneth Einar Himma, and Scott J. Shapiro Print Publication Date: Jan Subject: Law, Jurisprudence and Philosophy of Law 2004 Online Publication Date: Sep DOI: 10.1093/oxfordhb/9780199270972.013.0013 2012 Abstract and Keywords This article explores grounds for scepticism and measures its implications for legal theory.
    [Show full text]
  • Princeton Philosophy
    Princeton University Politics 563/Philosophy 526 Spring 2017 Prof. Robert P. George This seminar will consider a range of issues in philosophy of law with particular emphasis on various dimensions of the relationship between law and morality. Course Requirements: Students are required to read each week's assignments carefully and participate regularly in class discussions. Each student must make a presentation to the seminar. Two writing options are available: (1) a research paper or (2) two shorter, critical essays. Readings are drawn mainly from contemporary legal philosophers working within the tradition of analytic jurisprudence. Those readings marked with an asterisk (*) are on E-Reserves. The following books (all available in paperback editions) are worth purchasing: Ronald Dworkin, Law’s Empire John Finnis, Natural Law and Natural Rights (2nd edition) --------------, Philosophy of Law (in Collected Essays, Vol. IV) Lon L. Fuller, The Morality of Law H.L.A. Hart, The Concept of Law (2nd edition) Joseph Raz, Practical Reason and Norms Week 1: Organizational Meeting John Finnis, Philosophy of Law, ch. 5 (“A Grand Tour of Legal Theory”) Week 2: Hart's Concept of Law H.L.A. Hart, The Concept of Law, chs. I-VI *Jonathan Cohen, "Critical Notice of Hart's The Concept of Law," in Mind, Vol. 71 (1962) Week 3: Hart’s Legal and Political Philosophy H.L.A. Hart, The Concept of Law, chs. VII-IX John Finnis, Philosophy of Law, chs. 10 and 11 Week 4: Dworkin vs. Hart *Ronald Dworkin, Taking Rights Seriously, chs. 2-4 H.L.A. Hart, The Concept of Law, Postscript *H.L.A.
    [Show full text]
  • PHILOSOPHY of LAW Seventh Edition
    PHILOSOPHY OF LAW Seventh Edition Edited by Joel Feinberg University of Arizona Jules Coleman Yale Law School THOMSON WADSWORTH Australia • Canada • Mexico • Singapore • Spain < s» United Kingdom • United States CONTENTS PREFACE ix PART ONE: THE NATURE OF LAW 1 The Natural Law Tradition 8 Brian Bix, "Natural Law Theory" 8 Lon L. Füller, "Eight Ways to Fail to Make Law" 20 Positivism and Its Critics 24 John Austin, "A Positivist Conception of Law" 24 H. L. A. Hart, "A More Recent Positivist Conception of Law" 36 H. L. A. Hart, "Positivism and the Separation of Law and Morals" 50 Lon L. Füller, "Positivism and Fidelity to Law— A Reply to Professor Hart" 67 Ronald M. Dworkin, "The Model of Rules" 82 Riggs v. Palmer 100 Jules L. Coleman and Brian Leiter, "Legal Positivism" 105 Law From the Perspective of the Judge 119 O. W. Holmes, Jr., "The Path of the Law" 119 Jerome Frank, "Legal Realism" 125 Ronald Dworkin, "Integrity in Law" 127 Lon L. Füller, "The Case of the Speluncean Explorers" 142 John Hart Ely, "Discovering Fundamental Values" 157 David Lyons, "Constitutional Interpretation and Original Meaning" 172 Antonin Scalia, "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws" 187 Ronald Dworkin, "Comment" 196 CONTENTS The Moral Obligation to Obey the Law 204 Plato, Crito 204 Martin Luther King, Jr., "Letter from Birmingham Jail" 213 M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" 221 Scott J. Shapiro, "Authority" 236 PART TWO: JUSTICE 258 Liberty 267 John Stuart Mill, "On Liberty" 267 Joel Feinberg, "Offensive Nuisances" 278 Gerald Dworkin, "Paternalism" 293 Rights 304 Joel Feinberg, "The Nature and Value of Rights" 304 F.
    [Show full text]
  • Philosophy of Law, Reading Course Fall 2014
    Princeton University Department of Politics POL 5** – Philosophy of Law, Reading Course Fall 2014 Keith E. Whittington 240 Corwin Hall, 258-3453 [email protected] An introduction to general jurisprudence and philosophy of law. Requirements: 5 short papers Items marked with * are also on the public law field reading list. Schedule: 1. Starting Points Required: *John Austin, The Province of Jurisprudence Determined, analysis and lectures I-II *Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review (1897) *Karl Llewellyn, “A Realistic Jurisprudence – The Next Step,” Columbia Law Review (1930) Suggested: *Thomas Aquinas, Summa Theologica, I-II Questions 90-97 *Thomas Hobbes, Leviathan, ch. 14, 17-18, 21, 26 *John Locke, The Second Treatise of Government, ch. 8-13 William Blackston, Commentaries on the Laws of Engalnd Jeremy Bentham, Of Laws in General *Benjamin Cardozo, The Nature of the Judicial Process *Roberto Unger, The Critical Legal Studies Movement *Frederick Schauer, Playing by the Rules *Friedrich Hayek, The Constitution of Liberty, ch. 10 Oliver Wendell Holmes, The Common Law Hugo Grotius, On the Law of War and Peace Hans Kelsen, The Pure Theory of Law Karl Llewellyn, The Bramble Bush Karl Llewellyn, “Remarks on the Theory of Appellate Decision” Vanderbilt Law Review (1950) Karl Llewelllyn, “Some Realism about Realism,” Harvard Law Review (1931) Max Radin, “The Theory of Judicial Decision” American Bar Association Journal (1925) Max Radin, “Statutory Interpretation,” Harvard Law Review (1930) Jerome Frank, Law and
    [Show full text]
  • ARISTOTLE and the CONCEPT of LAW John T. Valauri
    VALAURI_GALLEYS 5/10/2011 10:10:34 AM DIALECTICAL JURISPRUDENCE: ARISTOTLE AND THE CONCEPT OF LAW John T. Valauri* General theories of law struggle to do justice to the multiple dualities of the law.1 INTRODUCTION Western law, culture, and philosophy thought that they were say- ing goodbye to Aristotle as they entered into modernity, only now to find the ancient philosopher standing in wait as they leave mod- ernity and enter into post-modernity. But what use do we have for Aristotle at this time? He can perform a valuable service for us—he offers a therapy for the “bipolar disorder”2 in contemporary juris- prudence and philosophy.3 This disorder is manifested in the wide- spread tendency to approach and analyze philosophical topics as dueling dichotomies, incapable of resolution or reconciliation. It is all too often assumed at the outset that one is faced with a stark ei- ther/or sort of choice between alternatives, so participants in the philosophical debates arising out of this approach typically take one side of the dichotomy and see it as their task to marginalize and di- minish the other side of the dichotomy.4 H.L.A. Hart diagnosed one case of this disorder in his famous depiction of American jurispru- dence as torn between the noble dream that judges can always *- Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. B.A., 1972; J.D., 1975, Harvard. 1. JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION 1 (2009). 2. In this Article, I will use the notion of a “bipolar disorder” in philosophy in a broader way to refer to a more general dichotomy problem common today in approaches to philoso- phical topics.
    [Show full text]
  • Provocation Frank’S Way
    PROVOCATION FRANK’S WAY Robert Post∗ I know that Dean Martha Minow would like me to begin with a provocation, but I can’t help beginning instead with an acknowledg- ment. Throughout my career as a legal academic, I have always had two guiding lights, two pole stars whose integrity and depth I have trusted to steer me in the right direction. One is Owen Fiss, and the other is Frank Michelman. No one would ever confuse these two scholars. Owen’s style is di- visive and pugnacious. His MO is to enter a controversy, the way that Clint Eastwood might enter a saloon, clarify the dispute, and adopt a position. Whether you agree or disagree, you are guaranteed to come away with a better sense of the stakes in question. Frank’s style, by contrast, is anything but swaggering. Frank is empathetic, polite, generous (almost to a fault), indirect, and tentative. His archetypical article worries a question. And when I say worries, I mean the way that a terrier might worry a rat — by turning it over every which way, by attacking it from every possible angle, and by tasting its every implication. In the end Frank may (or as likely may not) reach some provisional conclusions. But in the process the reader will certainly have reaped rich rewards, for he will have experienced how a deep scholarly mind, exercising perfect scholarly integrity, illu- minates depths hitherto unseen and unimagined. He will have been inspired by the gift of insight. Frank’s writings offer wisdom in the service of a passionate fidelity to the intractable complexity of legal issues.
    [Show full text]